Overhead Door Corp.

ADVANCE INDUSTRIES DIVISION Advance Industries Division-Overhead Door Corpora- tion and Fox River Valley District Council of Car- penters, Local Union 2497, United Brotherhood of Carpenters and Joiners of America, AFL-CIO. Cases 30-CA-2445 and 30-CA-2535 September 18, 1975 DECISION AND ORDER On May 22, 1974, Administrative Law Judge Alvin Lieberman issued the attached Decision in this pro- ceeding. Thereafter, the Respondent and the General Counsel filed exceptions and supporting briefs. The Respondent also filed an answer to the General Counsel's exceptions. The Board has considered the record and the at- tached Decision in light of the exceptions, briefs, and answer and has decided to affirm the rulings, find- ings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order, as mod- ified herein. We agree with the Administrative Law Judge's finding thu, .,espondent violated Section 8(a)(3) and (1) of the Act by failing to reinstate Romenesko, Koester, and Marheine upon the termination of the strike in which they participated. We disagree, how- ever, with the Administrative Law Judge's dismissal of the complaint with respect to the allegation con- cerning the discharge of five employees on the basis of their in-plant conduct on August 31, 1973.2 The record shows that the five employees 3 had participated in strike and picketing activity by the Union until August 28. Thereafter, the five employ- ees received telegrams directing them to return to their regular shift on August 31. They reported, as directed, to the second shift at the normal starting time of 4 p.m., on August 31, and worked without incident until 8:30 p.m. at which time Linda Kersten, the leadwoman in their department, told them, sepa- rately, that the shift would end and the plant would close at 10 p.m. that evening. The five employees had expected to work until midnight.4 When 10 p.m. came, the five employees made no ' In the absence of exceptions thereto, we adopt , pro forma, the Adminis- trative Law Judge's finding that Respondent violated Sec. 8(aX3) and (1) of the Act by discriminatorily depriving employee David Lee of overtime work. 2 All dates hereafter are 1973 , unless otherwise indicated. 3 Mary Blaese, Verlee Freimuth, Peggy Bennett , Bonnie Tullberg, and Rita Weber. Before the strike, the second shift started at 4 p.m. and ended at mid- night. Second-shift employees were permitted a 10-minute rest break at 10 p.m. Toward the latter part of the strike, Respondent altered the schedule and the replacement employees on the second shift began working more than 8 hours on each of the first 4 days of the week and less than 8 hours on Fridays. Operations were being conducted on this revised schedule during the week of August 27. 431 move to leave the plant but instead prepared for the 10-minute rest break they usually took at that time. When it became apparent that the five employees would remain in the plant after 10 p.m., Leadwoman Kersten told them the plant was closing and that if they did not leave she would punch their timecards. The five employees returned to their jobs and re- sumed working. Kersten punched their cards and Vyse, a supervisor in another department, pursuant to the earlier approval of Respondent's general man- ager, Sumnicht, called the police. The police arrived at the plant about 10:10 p.m. and conferred with Kersten and Vyse for about 10 minutes. Thereafter the police unsuccessfully urged the five employees to leave the plant. At about 10:45 p.m. the five employees were arrested and removed from the plant. The Administrative Law Judge found that the dis- positive precedent here is N. L R. B. v. Fansteel Met- allurgical Corporation, 306 U.S. 240 (1939). In so con- cluding, he found that the five employees had illegally seized the plant by remaining after their shift and refusing to leave the plant and that they had failed to follow the established grievance procedure. Unlike the Administrative Law Judge, we do not find that the evidence here shows conduct paralleling that in Fansteel, supra. There, approximately 95 em- ployees seized and possessed two of the employer's key buildings for 9 days. They ousted and excluded management representatives, and engaged in a delib- erate and calculated show of economic (and physi- cal) muscle, including violence, vandalism, and dam- age to the plant, to compel the employer to submit to their demands. The record here presents an entirely different picture. The protest lasted for 45 minutes. During that time the five employees did not bar ac- cess to or attempt to exclude management officials from the plant; just the opposite, they actively sought to present their questions to Respondent's manage- ment. They did not interfere with production and their actions were unaccompanied by violence or the threat of violence. Contrary to the Administrative Law Judge, we see nothing in the record here to indi- cate that the five employees attempted to take over or seize the plant. Thus, the ground upon which Fan- steel was decided is missing here. It is clear that the Act would protect these employ- ees if they had left the plant and formed a picket line outside the plant. We do not believe the purposes of the Act would be served if we denied the protection of the Act to the five employees here. Their conduct was reasonable under the particular circumstances present in this case and was less disruptive to all con- cerned than the resumption of the strike. In this con- nection, the record shows that the employees had 220 NLRB No. 68 432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD participated in strike and picketing activity by the Union from July 20 until August 28. The strike had been called by the Union in order to compel Respon- dent to recognize and bargain with it. Respondent had refused, and continued to refuse , to recognize and bargain with the Union even though the Union had been certified by this Board as the collective- bargaining representative of the employees in a unit of Respondent's employees, including the dischar- gees.5 Thus, as of August 31, the employees had rea- son to believe that the Union was their collective- bargaining representative and that the change in their working hours was a further indication of Respondent's refusal to recognize and bargain with the Union. It was in this context that the five em- ployees were discharged on the first day back to work after the strike. It also is significant that the telegram directing the five employees to report to their "regular shift" made no mention of any change in the hours of the shift. In this connection, we note that the Employer's guide- book states that the "normal work day shall consist of 8 (eight) hours per day" and "that [e]mployees will be given a reasonable notice (prior to leaving work the day previous) of the change in hours." It was this unexpected early dismissal of the shift contrary to the Employer's own guidebook rule and without any prior notice to the employees, and the effect which the employees reasonably assumed that action would have on their qualifying for holiday pay, that led the five employees to seek clarification from Respon- dent. Such activity is plainly protected, and does not lose its protection because of the employees' remain- ing on the plant premises after being ordered off. Such access to and limited use of employer facilities by employees has been protected since Republic A via- tion Corporation v. N.L.R.B., 324 U.S. 793 (1945). Finally, the existence of a grievance procedure uni- laterally established by Respondent does not provide a sufficient basis for denying the protection of the Act to the five employees in this case 6 We perceive a difference between the facts in the instant case and 5 As more fully described in sec. III of the Administrative Law Judge's Decision, the record shows that on April 19 the Union won a representation election conducted among Respondent's employees. On May 25, the Re- gional Director overruled objections filed by Respondent and certified the Union as the collective-bargaining representative of the employees in the appropriate unit. On June 19, the Board denied Respondent 's request for review of the Regional Director's Decision. Thus, at the time of the dis- charge of the five employees, the Union had been certified as the collective- bargaining representative of a unit of Respondent's employees. Thereafter, on October 31, 1974, the Board rescinded the certification of the Union in light of the Supreme Court 's decision in N.L. R.B. v. Savair Manufacturing Co., 414 U.S. 270 (1973). (See sec. III ,A,2, of the Administra- tive Law Judge's Decision.) 6 Sec. 9(a) of the Act provides that any individual employee or group of employees shall have the right at any time to present grievances to their employer. in a case where the employees or their chosen repre- sentatives have participated through the collective- bargaining process in a mutually acceptable means for the presentation and resolution of disputes aris- ing under the terms of the contract. In the latter situ- ation, it may defeat the purposes of the Act to allow a group of employees to bypass a contractual griev- ance procedure and take concerted action inapposite to the contractual procedure, as, for example, where employees take action which is inconsistent with a valid no-strike clause. That issue is not before us in this case. Given all of the foregoing facts, we find that the employees' conduct was not the type which is beyond the ambit of protected activity and that their dis- charge violated Section 8(a)(3) and (1) of the Act.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, Advance Industries Division-Overhead Door Corpo- ration, Appleton, Wisconsin, its officers, agents, suc- cessors, and assigns, shall take the action set forth in the Administrative Law Judge's recommended Or- der, as modified below: 1. Add the following as paragraph 1(b) and relet- ter the present paragraph accordingly: "(b) Discharging or otherwise discriminating against any employee for engaging in protected con- certed activity." 2. In relettered paragraph 1(c), substitute the phrase "In any other manner interfering with" for "In any like or related manner interfering with." 3. Substitute the following for paragraph 2(a): "(a) Offer to Darlene Romenesko, Betty Koester, Vicki Marheine, Mary Blaese, Verlee Freimuth, Peg- gy Bennett, Bonnie Tullberg, and Rita Weber imme- diate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights or privileges, and make them whole in the manner set forth in the section of the Administrative Law Judge's Decision entitled `The Remedy.' " 4. Substitute the attached notice for that of the Administrative Law Judge. MEMBER PENELLO, dissenting in part: Contrary to my colleagues, I would adopt the Ad- ministrative Law Judge's conclusion that Respon- dent lawfully discharged the five employees who en- gaged in a "work-in" after the scheduled hour of 7 See Crenlo, Division of GF Business Equipment, Inc., 215 NLRB No. 151 (1974); and Pepsi-Cola Bottling Company of Miami, Inc., 186 NLRB 477 ( 1970), enfd. 449 F.2d 824 (C.A. 5, 1971). ADVANCE INDUSTRIES DIVISION 433 plant closing on the evening of August 31. In all frankness, the result reached by the majority and the proposition of law for which it stands are, in my view, wholly repugnant to the purposes of the Act. As an initial point of departure, I perceive the con- text out of which the discharges arose in a somewhat different light than my colleagues in several impor- tant respects. That the five employees were con- cerned about the possible loss of 2 hours' pay and the effect it might have on their qualification for holiday pay is clearly supported by the record. However, the record is barren of any reliable evidence that the five employees ever articulated to Respondent's officials the nature of these concerns and their desire to pre- sent grievances over them. And, indeed, the Admin- istrative Law Judge so found. The majority's charac- terization that the five employees "actively sought to present their questions to Respondent's manage- ment," to the extent that it suggests that the five in fact clearly conveyed their concerns to management, is therefore, somewhat misleading. Additionally, the majority creates the impression that the conduct of the five was a spontaneous reac- tion to an unannounced early closing of the plant and that such conduct was occasioned by a reason- able belief that the closing at 10 p.m. was a further indication of Respondent's refusal to bargain with the Union. Simply put, such a picture does not com- port with the record facts. It is clear that Kersten, Respondent's leadwoman, advised each of the five as early as 8:30 that evening that the plant would close at 10 p.m. rather than at midnight, the normal time at which the plant was closed prior to the strike. Thus, while the announcement that the plant would close at 10 p.m. may have been unexpected by the five, they were in fact notified of Respondent's inten- tion to close the plant well in advance of that hour. Furthermore, in setting the events of that evening in proper perspective, the record contains not even the slightest suggestion that the five believed that the 10 p.m. closing was an attempt by Respondent to frus- trate the Union, and, indeed, there is more than an adequate basis for rejecting this inference drawn by my colleagues. Thus, in notifying the five of the scheduled closing, Kersten specifically informed at least two of them that the change in the closing hour was due to the fact that the employees who had been working during the strike would have by that time completed their full 40 hours of work for the week. And, totally consistent with Kersten's explanation, all the other employees on the shift punched out at 10 p.m. without incident, a fact of which the five were aware. In these circumstances, it seems appar- ent that the only reasonable interpretation which the five could place on the change in hours was that Respondent's decision to do so was based solely on legitimate business considerations. Given what I believe the record shows is the prop- er context of the events of that evening, and in view of the conduct of the five after 10 p.m., I find the rationale of the majority in finding the violation here totally unconvincing. My colleagues, in finding the conduct of the five to constitute protected activity, emphasize the factual distinctions between the in- stant case and Fansteel, supra, which the Administra- tive Law Judge found dispositive here. I do not deny that the facts in the instant case are not as dramatic as those in Fansteel. Thus, unlike that case, the con- duct of the employees here was unattended by vio- lence and the ousting of management officials. Nev- ertheless, the conduct of the five employees in this case constitutes in effect, if not in actual fact as well, a plant seizure and, therefore, falls within the general type of conduct found unprotected in Fansteel. Fur- thermore, the Board has held that the "gravamen of a plant seizure involved the refusal by employees to yield possession of the plant when offered to do so." 8 This is precisely what occurred in this case. Thus, when the 10 p.m. bell rang, all employees, save the five, left the plant. The five, however, made no move to leave the plant at that time but instead pre- pared to take a 10-minute break which they custom- arily took at that time. When it became apparent that the five would remain in the plant, Kersten again advised them that the plant was closing and warned that she would punch out their timecards. Thereafter, the five returned to their benches and resumed work- ing. Subsequently, the five, despite the directives of the police who had been called to the plant, re- mained on the premises. That the five remained in the plant until only 10:45 p.m. was attributable, not to any voluntary act by them, but rather to the fact that the police placed them under arrest and escorted them from the premises. By distinguishing Fansteel from the instant case solely on factual grounds, my colleagues have missed the basic thrust of the Supreme Court's opinion in that case. At the core of Fansteel lies not merely a condemnation of violence but the very basic balanc- ing of the employer's property rights on one hand, and the rights of employees to engage in concerted activity on the other hand. That a weighing of the competing interests of an employer and his employ- ees is a necessary and critical inquiry in cases such as that presented here is additionally clear from the de- cisions of the courts of appeals and the Board as well. Thus, as the Fourth Circuit so aptly states in 8 See KDI Precision Products, Inc., 176 NLRB 135, 137 (1969), and cases cited therein at In 4. 434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Cone Mills: Few rights, including the right to strike pro- test, exist without corresponding duties and obli- gations to those against whom the right is being asserted. When one attempts to exercise a claimed right he cannot, in all fairness, disregard his corresponding duty and obligation with im- punity.' It is apparent, however, that my colleagues have giv- en little, if any, consideration to Respondent's rights in maintaining control over the use of its equipment and the hours of plant operation. Such disregard of an employer's rights, and particularly the immediate interest of Respondent here in closing and securing its plant at the conclusion of a workweek, is implicit in the majority's equating protests occurring inside a plant to those expressed through the formation of a picket line outside the plant. The crucial distinction between the two types of activity, as appears in the instant case, lies in the fact that a protest outside Respondent's plant would in no way have interfered with his right to control the use of his equipment or to secure his plant. The majority, rather than engaging in a real ba- lancing of the competing interests here, merely stated that the protest in the instant case amounted to "[s]uch access to and limited use of employer facili- ties by employees [which] has been protected since Republic Aviation . . . ." That case is, however, of only marginal relevance here. Republic Aviation in- volved an employer's enforcement of a no-solicita- tion rule and a prohibition against the wearing of union insignia by employees. While that case holds that an employer may not, without substantial justifi- cation, unduly restrict the rights of employees to en- gage in organizational activities on his premises, it is far too great a leap from that proposition to the con- clusion reached by my colleagues that employees are engaged in protected activity when they continue to work after the scheduled hour of closing, on their own terms and in defiance of employer and police directives to leave. Nor do any of the other cases relied upon by the majority support such a conclu- sion.10 Rather, the presence of these particular facts here make this case one of a totally different dimen- sion than those cited by the majority. My colleagues have elected to expand the concept of protected activity beyond its legitimate limits. Nei- ther Congress nor the courts have ever suggested that Section 7 was designed to protect the type of activity evidenced here. Nor has the Board, until today. The effect of my colleagues holding, I fear, is to encour- age employees to resort to a type of compulsion, i.e., a "work-in," which must in future cases necessarily lead to confrontation and violence between employ- ees and employers. Such a result is wholly at odds with the basic purposes of our Act. 9 Cone Mills Corporation v N. L. R. B., 413 F.2d 445, 454 (C.A. 4, 1969). That the Board has not considered the right of employees to protest to be absolute, but rather has engaged in a balancing of interests test is also clear. See, e.g., The Masonic and Eastern Star Home of the District of Columbia, 206 NLRB 789, 790-791 (1973); Valley City Furniture Company, 110 NLRB 1589, 1594-95 (1954), and cases cited therein. 10 Pepsi-Cola and Crenlo, relied upon by the majority, do not support my colleagues' conclusion that the activity of the five employees here was of a protected nature . In those cases, the employees' protests occurred during working time and did not extend beyond the termination of the employees' shifts, let alone, as here, beyond the scheduled hour of plant closing. Nor did the protesters in either of those cases refuse to leave the employer's premises in defiance of a police order to do so. Finally, in those cases the employees engaged in work stoppages, rather than as here a "work-in," and, therefore, did not usurp the employer's exercise of control over the use of his equipment in utter derogation of his property rights. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing in which all parties had the opportu- nity to present their evidence, the National Labor Relations Board has found that we violated the law and has ordered us to post this notice, and we intend to carry out the Order of the Board and abide by the following: WE WILL NOT refuse to give you back your jobs because you take part in a strike against us. WE WILL NOT refuse to permit you to work overtime because you take part in a strike against us. WE WILL NOT discharge or discriminate against any employee for engaging in protected concert- ed activity. WE WILL NOT in any other way interfere with any right given to employees by the National Labor Relations Act. As it has been decided that we refused to take back to work Darlene Romenesko, Betty Koester, and Vicki Marheine, because they took part in the strike against us called by Carpenters Union, Local 2497; and as it also has been decided that we refused to permit David Lee to work overtime because he took part in the strike; and as it also has been decid- ed that we discharged Mary Blaese, Verlee Freimuth, Peggy Bennett, Bonnie Tullberg, and Rita Weber for engaging in protected concerted activity: WE WILL immediately offer to reinstate Dar- lene Romenesko, Betty Koester, Vickie Mar- ADVANCE INDUSTRIES DIVISION 435 heine, Mary Blaese, Verlee Freimuth, Peggy Bennett, Bonnie Tullberg, and Rita Weber to their old jobs or, if those jobs no longer exist, to substantially equivalent jobs. WE WILL permit David Lee to work overtime as he did before the strike. WE WILL pay Darlene Romenesko, Betty Koester, and Vicki Marheine, any wages lost by them because we did not take them back after the strike. WE WILL pay Mary Blaese, Verlee Freimuth, Peggy Bennett, Bonnie Tullberg, and Rita We- ber any wages lost because we discharged them for engaging in protected concerted activities. WE WILL pay David Lee any wages lost by him because we did not permit him to work overtime after the strike. meaning of Section 2(11) of the Act4 when her employ- ment by Respondent was terminated? 2. Assuming a negative answer to the foregoing ques- tion, did Respondent violate Section 8(a)(3) and (1) of the Act by refusing to reinstate Romenesko upon the termina- tion of a strike against Respondent in which she partici- pated? 3. Did Respondent violate Section 8(a)(3) and (1) of the Act by refusing to reinstate Betty Koester and Vicki Mar- heine upon the termination of a strike against Respondent in which they participated? 4. Did Respondent violate Section 8(a)(3) and (1) of the Act by discharging Mary Blaese, Verlee Freimuth, Peggy Bennett, Bonnie Tullberg, and Rita Weber? 5. Did Respondent violate Section 8(a)(3) and (1) of the Act by reducing the hours of employment of David Lee? Upon the entire record,5 upon my observation of the witnesses and their demeanor while testifying, and having taken into account the arguments made and the able briefs submitted,6 I make the following: ADVANCE INDUSTRIES DIVISION-OVERHEAD DOOR CORPORATION FINDINGS OF FACT DECISION STATEMENT OF THE CASE ALVIN LIEBERMAN, Administrative Law Judge: The trial in this proceeding, with all parties represented, was held before me in Appleton, Wisconsin, on February 12, 13, 14 and 15, 1974, upon the General Counsel's complaint dated January 4, 1974,1 and Respondent's answer? In general the issues litigated were whether Respondent violated Section 8(a)(3) and (1) of the National Labor Relations Act, as amended (Act).3 Particularly, the principal questions for decision are as follows: 1. Was Darlene Romenesko a supervisor within the 1 The complaint was issued pursuant to charges and amended charges filed between September 4, and December 6, 1973, by Fox River Valley District Council of Carpenters , Local Union 2497. 2 During the trial the answer was amended to admit Respondent's dis- charge and failure to reinstate the employees named in pars. 6 and 7 of the complaint, and to admit the reduction in working hours of the employee named in par. 8 of the complaint. The answer was further amended during the trial by adding the following as a second affirmative defense : "That the individuals listed in paragraph 6 of the complaint engaged in picket line misconduct which had the effect of eliminating their right to reinstatement after termination of a strike, and that the picket line misconduct is the reason for the termination of employment." 3 In pertinent part these sections provide. Sec. 8(a) It shall be an unfair labor practice for an employer- (1) to interfere with, restrain , or coerce employees in the exercise of the rights guaranteed in section 7; (3) by discrimination in regard to hire or tenure of employment ... to encourage or discourage membership in any labor organization Section 7, insofar as relevant, states: Sec. 7. Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through repre- sentatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection .... 1. JURISDICTION Respondent, an Indiana corporation, is engaged at Ap- pleton, Wisconsin, in the manufacture of radio control de- vices. During 1973, a representative period, Respondent purchased goods valued in excess of $50,000 from vendors located outside the State of Wisconsin. Accordingly, I find that Respondent is engaged in commerce within the mean- ing of the Act and that the assertion of jurisdiction over this matter by the National Labor Relations Board (Board) is warranted. Siemons Mailing Service, 122 NLRB 81, 85 (1958). II. THE LABOR ORGANIZATION INVOLVED Fox River Valley District Council of Carpenters, Local Union 2497, United Brotherhood of Carpenters and Join- ers of America, AFL-CIO (Union), is a labor organization within the meaning of Section 2(5) of the Act. III. INTRODUCTION Briefly, this case is concerned with the failure by Re- spondent to reinstate three individuals upon the termina- tion of a strike in which they participated, its discharge of 4 Set forth below are the provisions of this section. Sec. 2. When used in this Act- (11) The term "supervisor" means any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment. Obvious inadvertent errors in the stenographic transcript of this pro- ceeding have been noted and corrected. 6 Although all the arguments of the parties and the authorities cited by them, whether appearing in their briefs or made orally at the trial, may not be discussed in this Decision, each has been carefully weighed and consid- ered. 436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD five employees, and its denial of overtime work to one em- ployee, David Lee. All of the foregoing, the complaint al- leges, and the General Counsel and the Union contend,? was violative of Section 8(a)(3) of the Act. Respondent admits that it did not reinstate three strik- ers; that it discharged five employees ; and that Lee was deprived of overtime work. It contends, however, that in none of these cases did it trench upon Section 8 (a)(3) of the Act. To justify its refusal to reinstate the three strikers Re- spondent asserts in its brief that it "entertained an honest belief that these individuals had engaged in misconduct during the strike." In addition, Respondent argues that Darlene Romenesko, one of the strikers denied reinstate- ment, was a supervisor and, as such, not entitled to the protection of the Act. The discharges, Respondent contends, were occasioned by the refusal of the employees concerned to leave its plant at the end of their shift. Finally, Respondent takes the posi- tion that it did not discriminatorily deprive Lee of overtime work. IV. PRELIMINARY FINDINGS AND CONCLUSIONS 8 A. The Prior Proceedings 1. The representation proceeding On December 18, 1972, the Union filed a petition for certification as the collective-bargaining representative of Respondent's employees . During the hearing on this peti- tion Respondent took the position that the heads of its several departments, including Darlene Romenesko,9 were supervisors and should not be included in the unit pro- posed by the Union. Upon the evidence adduced at the hearing on the Union's petition the Board's Regional Director rejected Respondent's contention. In his Decision and Direction of Election (Direction of Election) issued on March 19, 1973,10 the Regional Director ruled that the department heads were not supervisors ; that they would be included in the unit he found appropriate for collective bargaining; and that they were eligible to vote in the representation election to be subsequently held. Maintaining its position that department heads , includ- r As the contentions of the General Counsel and the Union are similar, thesy will be referred to hereinafter as the General Counsel 's contentions. The purpose of these findings is to furnish a frame of reference within which to consider the facts relating to Respondent's alleged unfair labor practices and the conclusions to which they may give rise. To the extent that the contentions of the parties relate specifically to the findings made here they will be treated here, although they, as well as the findings, may again be considered in other contexts. 9 Among the unfair labor practices charged against Respondent in the instant proceeding is its failure to reinstate Romenesko upon the termina- tion of a strike in which she participated . As noted above , Respondent contends that its denial of reinstatement to Romenesko was privileged for two reasons, one being that she was a supervisor before the strike. In view of this contention, Romenesko's status, which was litigated in the representa- tion case, was, in accordance with well settled principles, again litigated in this proceeding. As appears below, it is my conclusion that Romenesko was not a supervisor. 10 All dates hereinafter mentioned without stating a year fall within 1973. ing Romenesko, were supervisors and that their inclusion in the unit was improper, Respondent filed with the Board a request for review of the Direction of Election . Conclud- ing that Respondent's request "raise[d] no substantial is- sues warranting review" it was denied by the Board on April 18.11 On April 19 a representation election was conducted among Respondent's employees in the unit found appro- priate by the Regional Director which the Union won. Re- spondent filed objections to conduct affecting the results of the election. In its objections Respondent again raised the issue of the supervisory status of its department heads. In addition, Respondent urged that the election be set aside because, among other things, "the Union . . . advised em- ployees that if they joined the Union prior to the election and the Union was successful their membership fee and/or initiation fee would be $1.00 otherwise it would be $25.00 or more." 12 On May 25 the Regional Director issued his Supplemen- tal Decision and Certification of Representative (Supple- mental Decision) overruling Respondent's objections and certifying the Union as the exclusive collective -bargaining representative of the employees in the unit earlier found to be appropriate. Reiterating its position concerning the supervisory status of department heads and raising, among other issues, the question of the Union's offer to reduce the dues and fees of employees who became members before the election, Re- spondent asserted that the Union's certification was invalid and requested Board review of the Supplemental Decision. On June 19 the Board declined to do so stating that Respondent's request "raise[d] no substantial issues war- ranting review." 2. The unfair labor practice proceeding Shortly after its certification the Union requested Re- spondent to bargain with it. Standing by its contention that the Union's certification was invalid, Respondent declined to do so. The Union, thereupon, filed an unfair labor prac- tice charge against Respondent, upon which a complaint issued, alleging that by its refusal to bargain Respondent had violated Section 8(a)(5) of the Act.14 In the proceeding thus instituted the General Counsel moved for summary judgment. Respondent argued, in op- position, that the Union's certification had been improvi- dently issued, raising once again the supervisory status of its department heads and again bringing to the fore its objections to the conduct of the election. Because Respondent's argument dealt with matters that had been litigated in the representation proceeding, as to which Respondent offered no new evidence, the Board G.C. Exh. 6. i2 G.C. Exh. 7. G.C. Exh. 9. 14 Insofar as material, Sec. 8(a)(5) is as follows: Sec. 8(a) It shall be an unfair labor practice for an employer- (5) to refuse to bargain collectively with the representatives of his employees . . . . ADVANCE INDUSTRIES DIVISION granted the General Counsel's motion for summary judg- ment and on November 26, 1973, handed down its Deci- sion and Order upholding the validity of the certification, finding Respondent in violation of Section 8(a)(5) and (1) of the Act, and requiring it to bargain with the Union. Advance Industries Division-Overhead Door Corporation, 207 NLRB 548 (1973) (Advance Industries I). On November 27 Respondent filed in the United States Court of Appeals for the Seventh Circuit a petition for review of the Board's Decision and Order in Advance In- dustries I. On December 17, during the pendency of Respondent's petition for review, the Supreme Court is- sued its decision in N.L.R.B. v. Savair Manufacturing Co., 414 U.S. 270 (1973), which bears upon Respondent's con- tention that the election should be set aside and the Union's certification held for naught because of the Union's offer of reduced fees and dues to employees who became members before the election. On January 14, 1974, Respondent requested the Board to reconsider its Decision and Order in Advance Industries I in the light of the Supreme Court's decision in Savair. In view of this, the Board moved the court of appeals to hold in abeyance the proceedings on Respondent 's petition for review in Advance Industries I pending resolution of Respondent's request for its reconsideration by the Board. This motion was granted. Being of the opinion that the matters raised by Respon- dent with respect to the Savair issue could best be resolved at a hearing, the Board, on April 22, 1974, granted Respondent's request for reconsideration of Advance Indus- tries I and ordered that a hearing be held before an Admin- istrative Law Judge for the purpose of receiving evidence on that issue and preparing a decision based on the evi- dence received. I am administratively advised that such a hearing has not yet been held. B. The Strike On July 20, 1973, the Union struck Respondent in order to compel it to bargain, which, as noted above, Respondent had refused to do. Picketing in support of the strike start- ed on July 23. The strike continued until August 28. Upon its termina- tion all strikers, except four, were reinstated to their former jobs with Respondent 16 and pursuant to its instructions returned to work on August 31. During the strike nails were sprinkled on plant drive- ways, plant windows were smashed, and lights affixed to poles located on Respondent's property were damaged. These acts of vandalism prompted Respondent to offer cash rewards for information leading to the arrest and con- 15 The General Counsel urges me to find that the strike was an unfair labor practice strike because it was caused by Respondent's refusal to bar- gain with the Union, which, in Advance Industries I, the Board found to have been violative of Sec . 8(aX5) of the Act. However, in view of the present posture of Advance Industries I such a finding would be premature at this time. 16 The complaint alleges that Respondent's refusal to reinstate three strik- ers, Darlene Romenesko, Betty Koester, and Vicki Marheme, constituted violations of Sec. 8(aX3) of the Act. As appears below, it is my conclusion that these allegations are well founded. 437 viction of their perpetrators. One of the damaged lights was referred to at the trial as the center light and will be referred to in that fashion in this decision." This light was damaged, I find, before 7:30 p.m. on July 27 and did not operate that night.I8 C. Some Working Conditions in Respondent's Plant 1. Work shifts Respondent operates two shifts. Before the strike the second shift 19 started at 4 p.m. and ended at midnight. Employees working on this shift were permitted a 10-min- ute rest break at 10 o'clock. Toward the latter part of the strike Respondent altered the schedule of the second shift. Pursuant to the change employees on the second shift worked more than 8 hours on each of the first 4 days of the week and less than 8 hours on Fridays. Operating on this schedule during the week of August 27, the week in which the strike ended, nonstriking second- shift employees had worked 34 hours at the close of their shift on Thursday. Accordingly, on Friday, August 31, the day on which the strikers returned to work, the second shift was slated to begin at 4 o'clock and end at 10, by which time employees working on the shift who had not partici- pated in the strike would have completed 40 hours of work that week. 2. Respondent's rules Respondent publishes, and makes available to employ- ees, a book entitled "YOU AND YOUR COMPANY" (Guide- book),20 containing rules for the guidance of employees concerning such matters as hours of work, tardiness, de- portment, etc. It also contains a simple two -step grievance procedure, the provisions of which appear below: L. GRIEVANCE PROCEDURE Employee has right to appear personally (accompa- nied by a representative if he wishes) at any of the following steps: Step 1. Employee will present his or her grievance to their immediate supervisor and a grievance report may be filled out. The supervisor has three days to make a 17 In evidence as G.C. Exh. 16 is a diagram of Respondent 's property showing three buildings . The light in question appears in this exhibit as being positioned in front of the middle building. 18 My finding concerning this matter, made necessary by Respondent's contention that it did not reinstate Romenesko because it honestly believed that she was involved in damaging the light, is based upon credible and uncontroverted testimony given by Jerry Jahnke, the Union's business man- ager, and his wife , which is substantially as follows- Upon their arrival at respondent's premises at about 7 :30 p.m. on July 27 they were informed by a group of pickets gathered at the center light pole that the light had been damaged. Both looked up at the light fixture but could see no bulb. Mrs. Jahnke then looked at the ground under the light and saw fragments of a glass. Thinking that the pickets had broken the light, Jahnke scolded them for having done so. Jahnke, who remained at respondent's premises until sometime after midnight, further testified that the center light "did not go on that evening." 19 The five employees whose discharge is alleged in the complaint as hav- ing been violative of Sec. 8(a)(3) of the Act worked on the second shift. ° G.C. Exh. 26 438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD decision and give the employee a reply. Step 2. If the grievance is not settled at the first step, the employee may request action at the Executive level and the grievance will be presented to the President or his Designee . A grievance report will be used to state the facts to the Executive level, and contain the employee's grievance and the decision of the supervi- sor at the first level. A reply will be given to the em- ployee after the facts have been reviewed, and a deci- sion made. Although not set forth in the guidebook Respondent maintains a policy, well known to its employees, concern- ing the payment of wages for holidays. In this regard, an employee will receive holiday pay if he works the day be- fore, and the day after, a holiday. As noted above, the strike terminated on August 28, 1973, and the striking employees, pursuant to Respondent's instructions, returned to work on August 31, the last workday before Labor Day. Respondent specifical- ly chose August 31 as the day for the strikers to return to work to permit them to qualify for holiday pay for Labor Day and to avoid complaints from the strikers concerning their being deprived of an opportunity to earn such wages had a later day been selected." D. Romenesko's Status As already noted, Respondent asserts that Darlene Ro- menesko was a supervisor before the strike . For this rea- son, as well as another to be discussed in a later section of this Decision, Respondent argues that its refusal to rein- state Romenesko , who participated in the strike, was privi- leged. During the trial, the General Counsel objected to my consideration of Romenesko's status in this proceeding be- cause it had "previously been litigated extensively" in the representation case, in which the Regional Director de- termined that she was not a supervisor 22 In accordance with what is now a well settled principle, I overruled the General Counsel's objection.23 Although I permitted the litigation in this proceeding of the question of Romenesko's status, the General Counsel adduced no evidence on this issue and the only evidence 2i Because of the preparations entailed in accommodating the returning strikers following the strike's termination on August 28 it was not feasible to have them come back earlier than August 31. The problems encountered by Respondent, in this connection , included rearranging production schedules; finding places for the returning strikers, as well as employees hired during the strike, to work; and making intershift transfers of employees who had notjoined the strike so that the strikers could return to the shifts on which worked before the strike. the It should be remembered that in the representation proceeding Respon- dent twice requested the Board to review the Regional Director's ruling that Romenesko was not a supervisor, once after the issuance of the Direction of Election by the Regional Director, and again after the issuance of his Sup- plemental Decision following the representation election . Each time the Board denied these requests, concluding that they "raise[d] no substantial issues warranting review" (G.C. Exhs. 6 and 9). 23 See, for example, Amalgamated Clothing Workers ofAmerica, AFL-CIO v. N.L.R.B., 365 F.2d 898 , 904-905 (C.A.D.C.); Abitibi Corporation, 198 NLRB 1249 (1972); and Lawson-United Feldspar & Mineral Co, 189 NLRB 350, 354 (1971). offered by Respondent was the record made in the repre- sentation case. I have carefully considered this record as well as the Direction of Election in which the Regional Director found that Romenesko was not a supervisor and the briefs submitted to the Board by Respondent in sup- port of its requests for review.25 Having considered the foregoing material , I am of the opinion, and I conclude, for the reasons set forth by the Regional Director in the Direction of Election 26 that Ro- menesko was not a supervisor before the strike. 7 V. THE ALLEGED UNFAIR LABOR PRACTICES A. Facts, Contentions, and Conclusions Concerning Respondent's Alleged Violations of Section 8(a)(3) of the Act by Refusing to Reinstate Strikers Respondent's denial of reinstatement to three strikers, Darlene Romenesko, Betty Koester, and Vickie Marheine, is alleged in the complaint as having been violative of Sec- tion 8(a)(3) of the Act. Respondent contends that in refus- ing to reinstate these strikers it did not transgress Section 8(a)(3) because it honestly believed, based on reports re- ceived from nonstriking employees and, in one case, the personal observation of Victor Sumnicht, its general man- ager, that the three employees had misconducted them- selves during the strike. Before discussing the facts upon which this contention is based it would be well, I think, to set forth some basic principles dealing with an employer's duty to reinstate striking employees. The starting point for discussion would seem to be the Supreme Court's comments on this point in N.L.R.B. v. Fleetwood Trailer Co., Inc., 389 U.S. 375, 378 (1967), where the following appears: If, after conclusion of the strike, the employer refused to reinstate striking employees, the effect is to discour- age employees from exercising their rights to organize and to strike guaranteed by Sections 7 and 13 of the Act . . . . Under Sections 8(a)(1) and (3) . . . it is an unfair labor practice to interfere with the exercise of these rights. Accordingly, unless the employer who re- fused to reinstate strikers can show that his action was due to "legitimate and substantial business justifica- tions," he is guilty of an unfair labor practice. N.L.R.B. v. Great Dane Trailers, 288 U.S. 26, 34 (1967). The burden of proving justification is on the employer. An employer may point to a striker's actual serious mis- conduct during a strike as constituting the "legitimate and substantial business justifications" warranting a refusal to reinstate the striking employee. Firestone Tire & Rubber 24 Resp. Exhs. 5A and 5B. 25 G.C. Exhs. 5 and 8. 26 G.C. Exh. 3. 27 The sole evidence adduced as to Romenesko 's status having been the record made in the representation proceeding upon which the Regional Director's decision was based , "the [finding] of the Regional Director [that Romenesko was not a supervisor was] accorded 'persuasive relevance,' " as suggested by the court in Amalgamated Clothing Workers, etc. v. N L.R.B., 365 F .2d 898, 905 (C.A.D C.). To the same effect, see Abitibi Corporation, 198 NLRB 1249; and Lawson-United, etc., 189 NLRB 350, 354. ADVANCE INDUSTRIES DIVISION Company, 187 NLRB 54, 55, reversed in other respects 449 F.2d 511 (C.A. 5, 1971). An employer may also escape lia- bility for refusing to reinstate strikers by establishing an honest belief that they misconducted themselves while the strike was in progress unless it develops that they did not do so. As the Board held in this regard in Rubin Bros. Footwear Inc., et al., 99 NLRB 610, 611, "the honest belief of an employer that striking employees have engaged in misconduct provides an adequate defense to a charge of discrimination in refusing to reinstate such employee, un- less it affirmatively appears that such misconduct did not in fact occur." 28 Finally, even where a striker actually misconducted him- self he may not be denied reinstatement absent a showing that "the misconduct is so violent or of such serious char- acter as to render the employee unfit for future service." N. L. R. B. v. Illinois Tool Works, 153 F.2d 811, 816 (C.A. 7). Although strike misconduct was not involved in Illinois Tool Works, the rule there laid down has been followed by the Board in strike situations. See, for example, Firestone Tire & Rubber Company, 187 NLRB 54, 56; and Terry Coach Industries, Inc., 166 NLRB 560, 563, enfd. 411 F.2d 612 (C.A. 9, 1969). With the foregoing precepts in mind, the acts of alleged misconduct engaged in by the strikers who were refused reinstatement will be discussed. 1. Darlene Romenesko Darlene Romenesko is the Union's treasurer. Before the strike she was actively engaged in the Union's affairs. Dur- ing the strike she was a picket captain and prepared sched- ules pursuant to which picketing was carried on. Romenesko was refused reinstatement because, as Re- spondent asserts, of its honest belief that during the strike, specifically on July 27, 1973, she was involved in miscon- duct in connection with the damage done to the center light on Respondent's premises. Respondent's belief, in this regard, is based on reports made to Victor Sumnicht, Respondent's general manager, by three employees who abandoned the strike shortly before its termination, that they witnessed Romenesko aim a hand gun at the light. The facts concerning this incident, as I find them, follow. Romenesko, accompanied by her husband and son, ar- rived at Respondent's premises in a vehicle of the camper type at or about 8:30 p.m. on July 27. At the time of her arrival it was not yet dark and the center light was not in operation. The driver of the camper parked it in a space opposite Respondent's buildings. Romenesko crossed the road sepa- rating her camper from the plant and walked toward the center light. When she came to the center light pole Ro- menesko drew a hand gun, which until that time had been concealed under her jacket, crouched down and aimed the gun at the light. After maintaining her position for a min- ute or two she replaced the gun under her jacket, recrossed the road, and handed the gun to her son. Throughout the 28 Although Rubin Bros. was reversed on review by the Court of Appeals for the Fifth Circuit, 203 F.2d 486, it was cited with approval by the Su- preme Court in N.L.R.B. v. Burnup and Sims, Inc., 379 U.S. 21, 23 (1964). 439 entire episode just recounted no sounds were heard of a gun being fired or of glass being broken.29 It is reasonable to assume that had Romenesko actually fired the gun the sound of its firing would have been heard. It is likewise reasonable to assume that had Romenesko fired the gun and had its projectile found its mark the sound of glass breaking would have been heard. This being so, I find that although Romenesko aimed a hand gun at the light, she did not actually fire it 30 I further find that the evidence does not affirmatively establish that Romenesko was in any way involved in the light's break- age, which I have earlier found occurred before 7:30 p.m. on the day in question. Accordingly, the honest belief held by Respondent that Romenesko had engaged in misconduct in connection with the damage to its center light does not provide Respondent with "an adequate defense to [the] charge of discrimination in refusing to reinstate [Romenesko because] it affirma- tively appears that such misconduct did not in fact occur." Rubin Bros. Footwear, Inc., et al., 99 NLRB 610, 611. I conclude, therefore, that Respondent violated Section 8(a)(3) of the Act by failing to reinstate Romenesko upon the termination of the strike. 2. Betty Koester and Vickie Marheine Betty Koester and Vicki Marheine became members of the Union in the spring of 1973. They both joined the strike and picketed Respondent's plant. Like Darlene Romenesko, Koester and Marheine were refused reinstatement upon the strike's termination be- cause of Respondent's asserted honest belief that they en- gaged in misconduct during the strike. Respondent's belief that they had done so is based upon reports received by Respondent from nonstriking employees and upon the per- sonal observation of Victor Sumnicht, Respondent 's gener- al manager, that Koester and Marheine jointly threw grav- el at a nonstriker's car; that Koester threw gravel at an employee while he was performing security guard duty; that she pounded on a car as it was being driven out of Respondent's parking lot; and that she shook a post in- 29 My findings as to this matter are based on testimony given by Nancy Felton, Joanne Conradt, and Carla Planert, the three employees who report- ed this incident to Victor Sumnicht, Respondent's general manager. Had Felton been the only witness to give evidence concerning this event I would not have believed her because of her obvious resentment and hostility to- ward Romenesko and her admitted desire "to cause trouble" for Romenes- ko. However, Felton's testimony was corroborated by Conradt and Planert, who did not similarly discredit themselves . Although evincing no great love for Romenesko, Conradt and Planert did not seem to be testifying out of hatred or vindictiveness toward her , as was the situation regarding Felton. On the contrary, by their demeanor Conradt and Planert impressed me as witnesses who were telling the truth notwithstanding the unpleasantness of the matter concerning which they were called upon to give evidence. In view of this, I do not credit Romenesko's testimony that she did not aim a hand gun at the center light. 30 Why Romenesko aimed a gun at the light but did not actually fire it furnishes thought for interesting speculation. Regardless of the reason for her having engaged in this antic ; whether it was done in "a moment of animal exuberance" (Milk Wagon Drivers Union v. Meadowmoor Dairies, Inc., 312 U.S. 287, 293), or whether it was motivated by mischievousness or an intent to harass Respondent, it was not, in my opinion, "so violent or of such a serious character as to render [Romeneskol unfit for further service." N.L R B v. Illinois Tool Works, 153 F.2d 811, 816 (C.A. 7). 440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD stalled on Respondent's premises as a guide to snow plow operators. The incidents involving Koester and Marheine jointly and Koester individually will be separately considered be- low. a. Alleged misconduct by Koester and Marheine jointly On the morning of August 6, 1973, Elaine Chamness, a nonstriking employee, came to work in a car driven by her husband in which Chamness sat on the right side of the front seat. As the car neared a driveway, surfaced with small sized gravel, leading to Respondent's plant Koester and Marheine, who had earlier picketed across the drive- way, were standing to its right. No other pickets or strikers were with Koester and Marheine at the time. When the car turned into the driveway Chamness saw "stones come flying at the car" and within "seconds" heard them "striking the automobile." Chamness did not see Koester or Marheine throw the stones , which were, in fact, small pieces of gravel. Chamness' car was then driven to Respondent's parking lot. Upon its coming to rest there Chamness examined the vehicle and noticed that "flicks of paint" had been chipped off its right rear panel 31 Before starting to work on August 6, Chamness in- formed her supervisor of the foregoing incident. This re- port formed the basis for Respondent's belief that Koester and Marheine, jointly, had engaged in misconduct during the strike. Koester and Marheine deny that they threw gravel at Chamness' car. Their denial, however, is belied by the cir- cumstances. Thus, both were picketing at the driveway in question when Chamness' car arrived . Both were standing on the right side of the driveway when the car was driven through it and no one else was with them. That gravel struck, and chipped paint off, the right rear panel of Cham- ness' car is attested to by uncontroverted evidence 32 Ac- cordingly, in view of the foregoing, I find that either Koes- ter or Marheine, or both, threw gravel at Chamness' car. However, I am of the opinion that their having thrown the gravel was not misconduct of such serious nature as to warrant Respondent's refusal to reinstate Koester and Marheine. Under somewhat similar circumstances the Board stated, "nor do we think that [a striker's] throwing one handful of small gravel at [a supervisor ] is misconduct so grave as to justify the refusal to reinstate [the striker]." W. J. Ruscoe Company, 166 NLRB 618, 620 (1967).33 31 My findings concerning this matter are based on, and the quotations appearing in the text are taken from, testimony given by Chamness 2 On brief the General Counsel theorizes that the paint could have been chipped off Chattiness' car before it entered the driveway and that the sound of gravel hitting the car could have been made by "loose stones on the gravel driveway [being ] kicked up by the car tires and [striking] the bottom of the car." Although the General Counsel presents a possible hy- pothesis, I think the probability of the car's having been damaged in the manner he suggests is, under the circumstances , too slight to be acceptable. 33 Although the Board's order in Ruscoe was denied enforcement in the respect here under consideration (406 F.2d 725 (C.A. 6, 1969) ), I am bound by what the Board decided . Insurance Agents' International Union, AFL_ CIO (Prudential Ins Co J, 119 NLRB 768, 773, reversed in other respects 361 U.S. 477 (1960). b. Alleged misconduct by Koester alone While the strike was in progress Respondent employed security guards to patrol its premises. To augment the se- curity guard force Respondent, from time to time, assigned nonstriking employees, including Eugene Schabo , to per- form security guard duty. During the night of August 14, 1973, shortly before the end of the second shift, while Schabo, as he testified, "was on security guard ... some stones came flying at [him]" from the direction in which a group of eight strikers includ- ing Koester, were standing. Not having seen who threw the stones, none of which hit him, and the group of strikers being some 20 to 25 feet distant from him, Schabo, as he further testified, "yelled, who did that?" Immediately after Schabo shouted out his question Koester detached herself from the group of strikers and walked to one of the plant driveways through which auto- mobiles carrying nonstriking employees were beginning to emerge from Respondent's parking lot, the second shift having just ended. As the last car approached the spot at which she had stationed herself Koester pounded on it with her hand. Schabo reported both incidents to Victor Sumnicht. The events set forth in this report, as well as another to be discussed below, formed the basis for Respondent's belief that Koester, individually, had misconducted herself dur- ing the strike. In his report Schabo identified Koester as having thrown stones at him "because," as he testified, "she immediately turned and started walking [toward the driveway, whereas] the other [people in the group] just sat there." Koester denied throwing stones and pounding on the car. Insofar as it relates to the former, I credit her denial. Schabo's identification of Koester as having thrown the stones is not founded on personal observation , but on con- jecture based on the fact that after the stones were thrown she left a group of strikers standing in the direction from which the stones came . Such a basis is too speculative to support an affirmative finding that Koester in fact threw the stones. This being the case, Respondent's "honest be- lief [that she did so] provides [no] defense to [the] charge of discrimination in refusing to reinstate" Koester. Rubin Bros. Footwear Inc., et al., 99 NLRB 610, 611. I come to a different conclusion concerning Koester's denial that she pounded on an automobile as it left Respondent's premises . In view of Schabo's assertive and believable testimony, unshaken on cross-examination, that he "saw [Koester] hit the side of a car [as it] was coming out of one of the driveways," Koester's denial that she did not do so is not credited. The last item of strike misconduct attributed to Koester, forming one of the bases for Respondent 's refusal to rein- state her, consists of her having shaken a post installed on Respondent's property for the guidance of snow plow op- erators. I find, as to this, despite Koester's testimony that she was merely "leaning on the pole," that twice on August 24, Koester and another striker did rock the post, which ex- tended some 4 feet above the ground; that in doing so they shook the post from side to side, moving it, as Victor Sum- ADVANCE INDUSTRIES DIVISION 441 nicht testified, about an "inch and a half." I further find that the post was not damaged in the process. Having found that Koester pounded on an automobile as it departed from Respondent's premises and that she rocked the snow plow post, the question remains as to whether these acts justified Respondent's refusal to rein- state her. Whether taken singly or together, or even when considered in connection with Koester's having thrown gravel at Chamness' car, they were not, in my opinoon "misconduct . . . of such serious character as to render [Koester] unfit for further service." N.L.R.B. v. Illinois Tool Works, 153 F.2d 811, 816 (C.A. 7). Accordingly, I conclude that Respondent violated Sec- tion 8(a)(3) of the Act by failing to reinstate Koester and Marheine upon the strike's termination. B. Facts and Conclusions Concerning Respondent's Alleged Violations of Section 8(a)(3) of the Act by Depriving an Employee of Overtime Work David Lee, who, the complaint alleges, was deprived of overtime work in violation of Section 8(a)(3) of the Act, became a member of the Union in November 1972. He joined the strike and picketed Respondent's plant. For about the last 2 years Lee and another employee, Richard Hoffman, who did not participate in the strike, have been the only full time employees in Respondent's sheet metal department. Before the strike each worked 45 hours a week, 5 hours of which constituted overtime work. Upon the termination of the strike Lee was reinstated, but told by his supervisor, Howard Linstad, that he would be working only 40 hours a week because, as Linstad testi- fied, it was Respondent's "aim . . . to keep all employees at forty hours." Nevertheless, Hoffman, who had not joined the strike continued to work 45 hours a week. Some 3 weeks after his reinstatement Lee complained to Victor Sumnicht about his being deprived of overtime work, pointed to the fact that Hoffman was performing such work, and suggested to Sumnicht, as Lee testified, that "if anyone else is working . . . overtime in [sheet met- al] department [he] ought to be allowed to do so." Sum- nicht agreed. Since then Lee has worked the same number of hours each week as he had worked before the strike. The foregoing findings, based on evidence adduced by the General Counsel, establish, prima facie, that Respon- dent discriminated against Lee because of his participation in the strike. Duncan Foundry and Machine Works, Inc., 176 NLRB 263, 264, enfd. 435 F.2d 612 (C.A. 7, 1970). At the trial Respondent indicated that although it did not agree with the complaint's allegation that Lee was de- prived of overtime work in violation of Section 8(a)(3) of the Act, it would not litigate the issue. And Respondent did not do so, not even by cross-examining Lee or Linstad, his supervisor. By not presenting counterevidence to rebut the prima facie case developed by the General Counsel Respondent took "the risk of an adverse finding." Avon Convalescent Center, 209 NLRB 937 (1974). I now make such a finding. Accordingly, I conclude on the evidence adduced on this matter by the General Counsel that by depriving Lee of overtime work upon his reinstatement after the strike Re- spondent violated Section 8(a)(3) of the Act. C. Facts Concerning Respondent's Alleged Violation of Section 8(a)(3) of the Act by Discharging Employees Mary Blaese, Verlee Freimuth, Peggy Bennett, Bonnie Tullberg, and Rita Weber (collectively referred to as the Five) were discharged on September 7, 1973.34 Each joined the Union before the strike, and each, except Tullberg, picketed Respondent's plant. Tullberg was the Union's steward and served as the Union's observer at the represen- tation election. Before the strike the Five worked in Respondent's as- sembly plant on the second shift 35 Upon the conclusion of the strike the Five were reinstated and notified by Respon- dent to "report at the start of [their regular] shift on Friday, August 31, 1973." 36 They reported as directed and worked without incident until about 8:30 p.m. At that time, it occurred to Linda Kersten, their supervi- sor,37 that the Five, who were at work for the first time` since the strike's termination, might not be aware that the shift would end, and that the plant would be closed, at 10 o'clock. Accordingly, she decided to advise them of the early ending of the shift and of the plant's early closing. Upon being so advised, Tullberg, the second of the Five to whom Kersten spoke, stated, as Kersten testified, that "she wasn't leaving at ten o'clock, she wanted to work to twelve o'clock." Anticipating a problem because of what Tullberg had said, Kersten consulted with David Vyse, the supervisor of another department. Vyse told her that if, in fact, the Five refused to leave the plant when it closed at 10 o'clock, he would call the police. Kersten then telephoned Victor Sumnicht and apprised him of the anticipated difficulty. Sumnicht approved of the manner in which Vyse intended to handle the problem, should it actually arise. Following her conversations with Vyse and Sumnicht, Kersten returned to the assembly department and in- formed each of the Five that the plant would close at 10 o'clock. Several replied that they would not depart at that time. None indicated an intention of doing so. Although the Five never explained to Kersten or Vyse why they were reluctant to leave the plant at 10 o'clock, they were concerned about the possibility of their losing holiday pay for Labor Day unless they worked 8 hours on August 31, the last working day before the holiday.38 They 34 The complaint alleges that these discharges were violative of Sec. 8(aX3) of the Act. 3 As will be recalled, I have found that before the strike the hours of the second shift were from 4 p.m to midnight and that on August 31 the shift was scheduled to begin at its normal time, but was slated to end at 10 p.m. 36 G.C Exh. 11. 37 My reference to Kersten as the Five's supervisor is made for conve- nience only and should not be construed as a finding that she is a supervisor within the meaning of the Act. In the representation proceeding she, like Romenesko, was found not to have that status. 38 As I have earlier found, under Respondent's policy an employee is not paid for a holiday unless he works the day before, and the day after, the holiday. 442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD were also troubled about the prospect of losing wages for 2 hours 39 Being bothered by these matters, Freimuth, after consul- tation with Tullberg, the Union's steward, telephoned Jerry Jahnke, the Union's business manager, at about 8:45 p.m. and informed him of the situation. Jahnke instructed her, as she testified, "to stay working [beyond ten o'clock] even though they turned the lights out," and that in the mean- while "he would come over to the plant and try to get [their] questions answered." Freimuth informed her four colleagues of Jahnke's instructions. At 10 o'clock the Five made no move to leave the plant. Instead, they prepared for the 10-minute rest break they usually took at this hour. When it became apparent that the Five would remain in the plant after 10 o'clock , Kersten their supervisor, and Vyse, who supervised another department, told them that the plant was closing and that if they did not leave their timecards would be punched out. The Five, however, per- sisted in remaining in the plant . Kersten, therefore, punched their cards 40 and Vyse called the police. Approximately at this time, Freimuth, as she testified, sought advice from Jahnke, the Union's business manager, who, by then, was at Respondent's premises, as to what the Five should "now . . . do." Jahnke instructed them to "go back and work." Accordingly, at the end of what would normally have been their rest period the Five returned to their benches and resumed their work. The police arrived at the plant at about 10:10 p.m. After conferring with Vyse and Kersten for about 10 minutes, the police entered the assembly department where the Five were still working. For the next 25 minutes, as Respondent aptly states in its brief, "the police officers requested, in- structed, ordered, and in every conceivable way attempted to cause the individuals to leave the premises ," but to no avail. While the police were importuning the Five to leave the plant, Freimuth, accompanied by a policeman and some members of the group , once more sought Jahnke's advice. Jahnke told them, as Freimuth related "that he couldn't get any answers to the questions that he wanted," and again instructed them to "go back to work." Being thus stiffened in their resolve not to leave the premises before midnight, the Five refused to depart volun- tarily. In view of this, at or about 10:45 p.m. they were arrested and removed from the plant. On September 4 Respondent placed the Five "on indefi- nite suspension . . . for incidents [of] Friday night, August 31st." 4 On September 7 they were discharged. Each was informed by letter that "the events and surrounding cir- cumstances of the Friday, August 31 incident . . . left [Respondent] with no alternative." 42 39 In this regard, Sumnicht testified he "did [not] intend to pay the .. . five . . . for the hours of ten to twelve." 40 As Vyse explained, "when [an employee's] timecard is punched out [the employee is] no longer being paid." G.C. Exh. 14. 42 G.C. Exh. 13. D. Contentions and Concluding Findings Concerning Respondent's Alleged Violation of Section 8(a)(3) of the Act by Discharging Employees The parties assure me that no case decided by the Board or the courts deals squarely with the issue presented by the Five's refusal to leave Respondent's premises at the end of their shift. However, in view of the in-plant nature of the incidents they have analogized the situation to an in-plant strike even though the Five continued to work while they remained in the plant after 10 p.m., when it was to have been closed. The analogy is apt and I will accept it. In some cases in-plant strikes have been held to fall with- in the protection afforded concerted activity by Section 7 of the Act and in some cases different results have been reached. The leading authority in the latter line is, as is well known, N.L.R.B. v. Fansteel Metallurgical Corporation, 306 U.S. 240, 256-257. There, the Supreme Court had for decision the question of whether an unfair labor practice was committed by the discharge of employees who, in order to compel their em- ployer to bargain with their union, stopped work, seized their employer's buildings and held them until ousted by police. In finding this conduct to have been unprotected by the Act and, consequently, the discharges privileged the Court stated: This was not the exercise of "the right to strike" to which the Act referred. It was not a mere quitting of work and statement of grievances in the exercise of pressure recognized as lawful. It was an illegal seizure of the buildings in order to prevent their use by the employer in a lawful manner and thus by acts of force and violence to compel the employer to submit. When the employees resorted to that sort of compulsion they took a position outside the protection of the statute and accepted the risk of the termination of their em- ployment upon grounds aside from the exercise of the legal rights which the statute was designed to con- serve. A different point of view is presented in Pepsi-Cola Bot- tling Company of Miami, Inc., 186 NLRB 477, 478, enfd. 449 F.2d 824 (C.A. 5, 1971). 43 There, the Board held, with subsequent court approval , that an in-plant work stoppage undertaken to protest the discharges of employees not in- volved in the "sitin," which did not extend beyond the termination of the protesters' shift, and which ended when the strikers complied with a request by police to leave the plant was not "an illegal sitdown strike." Accordingly, the discharge of the employees who engaged in the "sitin" was found to have contravened Section 8(a)(3) and (1) of the Act. As noted, the Board's Order in Pepsi-Cola was enforced by the Court of Appeals for the Fifth Circuit 44 In doing so the court was careful to point out that there were "no facts 43 Although in his brief the General Counsel cites many authorities in addition to Pepsi-Cola to support the position he advocates ; i.e., that the discharges here were violative of Sec. 8(a)(3) of the Act, he states that Pepsi- Cola is the "lead case." 14 N.L.R.B. v Pepsi-Cola Bottling Company of Miami, Inc., 449 F.2d 824, 829-830, cert. denied 407 U.S. 910 ( 1972). ADVANCE INDUSTRIES DIVISION ... tending to show that the employees were [holding] the premises in defiance of the owner's right of possession"; that the "sit-down did not, nor did it threaten to carry over into the next shift"; that "the employees left immediately when requested to do so by the police"; that their employer's earlier disobeyed order that they leave the plant "serve[d] no immediate employer interest"; and, finally, that there was "no . . . established, regular procedure by which employees were to present their grievances." Under the foregoing "circumstances," the court went on to say, "we cannot find that the employees had no interest in pre- senting their grievance [concerning the discharge of other employees] in the manner chosen." The General Counsel urges me to decide the issue pre- sented by the discharge of the Five as the Board did in Pepsi-Cola; that is, by finding it violative of Section 8(a)(3) and (1) of the Act. Respondent urges me to decide that the discharge did not trench upon either section, as the Su- preme Court did in Fansteel. Although the question is close, I think Respondent has the better of the argument. The facts upon which the discharge of the Five was based do not fall completely within the different patterns presented by Fansteel on the one hand, and Pepsi-Cola on the other. However, the differences between the facts in the instant case from those in Pepsi-Cola and their general re- semblance to the facts in Fansteel lead me to the conclu- sion that dispositive precedent is Fansteel, not Pepsi-Cola. The first item for consideration is that in this case, unlike Pepsi-Cola there is an "established, regular procedure by which employees [are] to present their grievances." The en- forcing court in Pepsi-Cola laid great stress upon the ab- sence of such a procedure, which, although present here, was not followed by the Five. On brief the General Counsel states that "respondent's grievance procedure is not of [an] 'established' nature." I do not agree. As I have found, Respondent publishes, and makes available to employees, a guidebook 45 in which a grievance procedure is set forth. There having been no union with which Respondent was obligated to bargain when the grievance procedure was adopted, nor is there even now a union entitled to recognition by Respondent,46 it was not required to do more in establishing a grievance procedure. Cf. Lawson-United Feldspar & Mineral Co., 189 NLRB 350, 362. Next to be considered is the Five's refusal to comply voluntarily with requests and orders to leave the plant made by Respondent's agents and policemen. These re- quests and orders were not akin to the order to leave given to the in-plant strikers in Pepsi-Cola which, the court stated in enforcing the Board's Orders, "served[d] no immediate employer interest." Here, the "immediate employer inter- est" to be served in having the Five leave Respondent's building was the necessity for it to be closed and secured at the end of the scheduled working day. By remaining in the plant until ousted by police, despite requests and orders to leave serving an "immediate em- 4s G.C. Exh. 26. 46 It will be remembered, in this connection, that the validity of the Union's certification is under reconsideration. 443 ployer interest," the Five, in effect if not in fact, illegally seized the plant 47 In this respect what the Five did more closely resembles the conduct of the sit-down strikers in Fansteel, who also seized a plant and refused to leave until evicted by police, than it does that of the employees in Pepsi-Cola, who, as noted by the court in its opinion en- forcing the Board's Order, did not, like the Five, "hold the premises in defiance of the owner's right of possession." Nor did the employees in Pepsi-Cola, like the Five, refuse to leave the plant voluntarily when the police requested them to do so.48 The final act distinguishing this case from Pepsi-Cola is that there, as the Court of Appeals for the Fifth Circuit stated when it enforced the Board's Order, "the sit-down did not, nor did it threaten to carry over into the next shift." Here, there was both a threat by the Five not to leave Respondent's plant at the end of their shift and an effectuation of the threat. The foregoing not only differen- tiates this case from Pepsi-Cola, but, to an extent, also marks its resemblance to Fansteel, where too, the "sit- down" carried over beyond the striker's shift. Accordingly, I find, as the Supreme Court did in Fa - steel, that the conduct of the Five in refusing to le e Respondent's plant in compliance with orders and requ sts to depart and in remaining there after the end of their hift did not fall within the protection afforded to employes by Section 7 of the Act. I conclude, therefore, that b dis- charging them for having done so Respondent did not vio- late Section 8(a)(3) and (1). Consequently, I will recom- mend that paragraph 7 and the relating portion of paragraph 9 of the complaint be dismissed. VI. THE EFFECT OF RESPONDENT'S UNFAIR LABOR PRACTICES UPON COMMERCE Respondent's unfair labor practices, as found above, oc- curring in connection with its operations described in sec- tion I, above, have a close, intimate, and substantial rela- tionship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. VII. THE REMEDY Having found that Respondent engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act my recommended Order will require Respondent to cease and desist therefrom and to take such affirmative action as will effectuate the policies of the Act. In this connection, my Order will require Respondent to offer im- mediate and full reinstatement to Darlene Romenesko, Betty Koester, and Vicki Marheine, and that Respondent make them and David Lee whole for any losses they may have suffered by reason of the discrimination practiced 07 In KDI Precision Products, Inc., 176 NLRB 135, 137, enfd. 436 F 2d 385 (C.A. 6, 1971), it was stated that "the gravamen of a plant seizure involves a refusal by employees to yield possession of a plant when ordered to do so." "Although the Five held Respondent's premises only about an hour, a relatively short period of time when compared with the length of time Fansteel's buildings were occupied by sit-down strikers, the important fact is that there was here, as in Fansteel, an illegal plant seizure. This fact, the Court held in Fansteel, deprived the strikers of the Act's protection. 444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD against them . Any backpay found to be due to the fore- going employees shall be computed in accordance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), and shall include interest in the amount and manner provided for in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Upon the basis of the foregoing findings of fact, and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. Darlene Romenesko, while in Respondent's employ, was not a supervisor within the meaning of the Act. 4. By failing and refusing to reinstate Darlene Romenes- ko, Betty Koester, and Vicki Marheine upon the termina- tion of the Union's strike against Respondent, thereby dis- couraging membership in the Union, Respondent has engaged, and is engaging, in unfair labor practices within the meaning of Section 8(aX3) and (1) of the Act. 5. By depriving David Lee of overtime work upon his reinstatement after the Union's strike against Respondent, thereby discouraging membership in the Union, Respon- dent has engaged, and is engaging, in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 6. Respondent did not engage in unfair labor practices within the meaning of Section 8(a)(3) or (1) of the Act by discharging Mary Blaese, Verlee Freimuth, Peggy Bennett, Bonnie Tullberg, and Rita Weber. 7. The unfair labor practices engaged in by Respondent, as set forth in Conclusions of Law 4 and 5, above, affect commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 49 Respondent, Advance Industries Division-Overhead Door Corporation , its officers, agents, successors, and as- signs shall: 1. Cease and desist from: (a) Discouraging membership in Fox River Valley Dis- trict Council of Carpenters, Local Union 2497, United Brotherhood of Carpenters and Joiners of America, AFL- CIO, or any other labor organization , by discharging or refusing to reinstate employees, or by discriminating in any 49 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. manner against employees in regard to hire or tenure of employment or any term or condition of employment. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of their right to self-organization, to form, join, or assist labor orga- nizations, to bargain collectively through representatives of their own choosing, or to engage in other concerted activi- ties for the purpose of collective bargaining or other mutu- al aid or protection as guaranteed in Section 7 of the Na- tional Labor Relations Act, as amended, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring member- ship in a labor organization as a condition of employment in conformity with Section 8(a)(3) of said Act. 2. Take the following affirmative action which, it is found, will effectuate the policies of the National Labor Relations Act, as amended. (a) Offer to Darlene Romenesko, Betty Koester, and Vicki Marheine immediate and full reinstatement to their former jobs, or, if those jobs no longer exist, to substantial- ly equivalent positions, without prejudice to their seniority or other rights or privileges and make them whole, in the manner set forth in the section of this Decision entitled "The Remedy," for any loss of earnings they may have suffered by reason of the discrimination practiced against them. (b) Make David Lee whole, in the manner set forth in this Decision entitled "The Remedy," for any loss of earn- ings he may have suffered by reason of the discrimination practiced against him. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records neces- sary to analyze the amount of backpay due under the terms of this recommended Order. (d) Post at its premises, in Appleton, Wisconsin, copies of the attached notice marked "Appendix." 50 Copies of said notice, on forms provided by the Regional Director for Region 30, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 con- secutive days thereafter, in conspicuous places, including all places where notices to employees are customarily post- ed. Reasonable steps shall be taken by Respondent to in- sure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 30, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER ORDERED that paragraph 7 and the relating portion of paragraph 9 of the complaint be, and they here- by are, dismissed. 30 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board"